COVID-19, India, and Investor-State Dispute Settlement (ISDS): Will India Be Able to Defend Its Public Health

Asia Pacific Law Review, Vol. 28(1), 2020

Posted: 25 Oct 2020

See all articles by Prabhash Ranjan

Prabhash Ranjan

South Asian University

Pushkar Anand

Faculty of Law, University of Delhi

Date Written: October 17, 2020

Abstract

The Coronavirus Disease 2019 (COVID-19) pandemic has forced States to adopt a number of regulatory responses, which, in turn, could negatively impact foreign investors. Thus, many apprehend that foreign investors might bring investor-State dispute settlement (ISDS) claims against States under different bilateral investment treaties. The COVID-19 pandemic has badly affected India, forcing India to adopt a national lockdown to slow down the spread of the disease. The lockdown ran for several weeks bringing a large range of economic activities to a grinding halt. In this context, this article argues that if ISDS claims are brought against India, India will be able to defend its COVID-19 regulatory measures under the treaty defences given as part of the non-precluded measures provision and as an exception to the expropriation provision. Further, India will also be able to rely on the police powers doctrine emanating from customary international law. Given the scale of the pandemic, the tribunals should grant substantial deference to India while adjudicating upon its COVID-19-related regulatory measures.

Keywords: COVID-19, India, police powers, investor-state dispute settlement, non-precluded measures, expropriation, standard of review, bilateral investment treaties

Suggested Citation

Ranjan, Prabhash and Anand, Pushkar, COVID-19, India, and Investor-State Dispute Settlement (ISDS): Will India Be Able to Defend Its Public Health (October 17, 2020). Asia Pacific Law Review, Vol. 28(1), 2020, Available at SSRN: https://ssrn.com/abstract=3713902

Prabhash Ranjan

South Asian University ( email )

Akbar Bhawan
Chankyapuri
Delhi, WA
India

Pushkar Anand (Contact Author)

Faculty of Law, University of Delhi ( email )

Faculty of Law
University of Delhi
New Delhi, Delhi 110007
India
+91-8130043022 (Phone)

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